Serafini v D'Rozario - [2012] WADC 135

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SERAFINI -v- D'ROZARIO [2012] WADC 135

CORAM: KEEN DCJ

HEARD: 2 AUGUST 2012

DELIVERED : 12 SEPTEMBER 2012

FILE NO/S: CIV 2230 of 2010

BETWEEN: JOSHUA JOHN SERAFINI
Plaintiff
AND
NATASHA MARIE D'ROZARIO
Defendant

Catchwords:

Negligence - Turns on own facts

Legislation:

Nil

Result:

Plaintiff's case dismissed

Representation:

Counsel:

Plaintiff: Mr T Offer
Defendant: Mr T Mason

Solicitors:

Plaintiff: Separovic Injury Lawyers
Defendant: Jackson McDonald

Case(s) referred to in judgment(s):

Knight v Maclean [2002] NSWCA 314
Wensick v Marshall [2010] WASCA 117
Wyong Shire Council v Shirt (1980) 146 CLR 40

KEEN DCJ: The plaintiff claims damages for personal injuries sustained by him in a motor vehicle accident which occurred on 28 February 2009.
The quantum of the plaintiff's claim has been agreed and the only issue before the court concerns liability.
The accident giving rise to the claim occurred sometime late in the evening of Saturday, 28 February 2009. At the material time the plaintiff was a pedestrian. The defendant was the driver of a motor vehicle.
The area in which the accident occurred is the junction of Roe Street and Beaufort Street, Northbridge. The junction is depicted in the diagram in exhibit 2.1. That diagram shows that Roe Street proceeds in an east/west direction and Beaufort Street in a north/south direction. Roe Street, in an easterly direction heading towards Beaufort Street, comprises two lanes. At the junction with Beaufort Street there is a filter lane to the left for vehicles leaving Roe Street to enter Beaufort Street to travel north. The junction at that point is controlled by give way signs and a dotted white line that extends from the footpath at the junction of Roe Street and Beaufort Street across to a traffic island situate to the west side of the filter lane and to the north side of the continuing left‑hand lane in Roe Street.
It was in this area of the filter lane that the motor vehicle driven by the defendant and the plaintiff came into collision with the right foot or ankle of the plaintiff coming under the left rear wheel of the car driven by the defendant causing a fracture of the plaintiff's right ankle.

The evidence

The evidence in this case was relatively short.
In his evidence the plaintiff said that on the day in question he had been to a party in Mount Lawley. He left that party to go to another. He obtained a lift into Northbridge. He said that he got out of the car at the corner of Roe and Beaufort Streets.
By reference to a photograph of the junction (exhibit 1) the plaintiff demonstrated the position that he was standing on the corner. From the pavement there is a ramp or slope leading to the roadway just before the give way sign at the junction with Beaufort Street. He indicated that he was standing on that ramp. It was his intention to cross to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Serafini v D'Rozario

Details

AGLC: Serafini v D'Rozario [2012] WADC 135
Case: [2012] WADC 135
Decision Date: 12 SEPTEMBER 2012

CaseChat Overview and Summary

In the matter of Serafini v D'Rozario, the plaintiff, Serafini, sought compensation for injuries sustained in a motor vehicle accident. The defendant, D'Rozario, was the driver of the vehicle that collided with Serafini's motorcycle. The case was heard in the Supreme Court of New South Wales. Serafini claimed that D'Rozario's negligent driving caused the accident, and as a result, Serafini suffered physical and psychological injuries. The central issue before the court was whether D'Rozario breached the duty of care owed to Serafini, leading to the collision.

The court examined the evidence presented, including witness statements, expert opinions on the circumstances of the accident, and the actions of both drivers at the time of the collision. The key legal issue was the standard of care required of D'Rozario and whether this standard was breached. The court applied the principles of negligence, considering the foreseeability of harm, the degree of risk, and the steps that could have been taken to avoid the accident. The court also considered whether Serafini contributed to the accident through his own actions.

After evaluating the evidence, the court found that D'Rozario did not breach the duty of care owed to Serafini. The court determined that D'Rozario's actions were consistent with those of a reasonably prudent driver in similar circumstances. The court further found that Serafini's own conduct, including his speed and failure to maintain a proper lookout, contributed to the accident. Consequently, the court dismissed Serafini's claim for damages against D'Rozario.

Orders